The Liberty-Equality Debate: Comparing the Lawrence and Naz Foundation Rulings

(This post was originally published on the Oxford Human Right Hub Blog. I am grateful to the administrators for allowing me to re-post it here.)

Last month marked the 10 year anniversary of Lawrence v Texas, where the US Supreme Court ruled that laws that criminalised sodomy were unconstitutional. Like June 26 2013, June 26 2003, was also a historic day for the LGBT rights movement. For many LGBT rights activists, Lawrence was their Brown, the historic civil rights case that found racial segregation in US public schools unconstitutional. The significance of the Lawrence ruling, however, is not restricted to the US.

In this post, I shall reflect on Lawrence’s conclusions and compare it with the approach taken in the Naz Foundation case (decided by the High Court of Delhi, India which decriminalized consensual sex between homosexual partners). In comparing these two rulings, I examine the interpretation of liberty and equality provisions found in the US and Indian constitutions.

In Lawrence, the majority opinion of the US Supreme Court invalidated the prohibition on homosexual intercourse using the constitution’s due process clause predicated on liberty, but did not engage with equal protection claims. Catherine Mackinnon argues that majority’s singular reliance on due process to examine for substantive validity of law indicates that ‘empty formalism of legal equality…is the limit of equal protection’s visible horizon.’ Conversely, Justice O’Connor held the law ultra vires the ‘equal protection clause’ as it ‘[branded] one class of persons as criminal based solely on the State’s moral disapproval of that class and the conduct associated with [it]’.  Because the US Supreme Court approached liberty and equality as isolated values, I shall call its ruling a ‘detached view’.

An example of a different approach, where liberty and equality are seen as integrated, rather than detached concepts, can be seen in Naz. In this case the High Court gave an integrated reading of Articles 14 (equality), 19 (free speech, association, etc.) and 21 (life and personal liberty) of the Indian Constitution, bringing, in a sense, due process and equal protection together. It looked at the criminalization of sodomy from different optics including dignity, privacy, liberty and equality. By holding that the legislation interfering with liberty ought to satisfy the demands of fairness, reasonableness, and proportionality, Naz, like the majority opinion in Lawrence, relies on due process. Yet, it proceeds further to integrate it with a substantive conception of equal protection. It notes that anti-sodomy laws inevitably target the homosexual identity branding them criminals and causing pervasive prejudice leading to their marginalization and persecution. These laws force LGBT individuals to conceal their identities and pass as heterosexual persons. The fear of violence pushes them ‘underground’ and also dissuades them from accessing AIDS prevention material and treatment’. This, the court noted, makes homosexual persons more vulnerable to, inter alia, AIDS than their heterosexual counterparts. These are systemic issues where infringement of liberty and denial of equality are intimately connected. Here the integrated approach of Naz seems more suitable than the detached one in Lawrence.

At a deeper level though, it remains under-appreciated by both the US and Indian Courts that inequality here pertains to heteronormativity which presumes heterosexuality as ‘normal’ and homosexual relations as immoral and deviant. The expectations this ideology entail mean that inequality exists not merely in individual relations but also permeates social institutions and systems. Justice Scalia in Lawrence observes that legalizing homosexual intercourse is not limited to sexual relations but extends to organization of family and family law including the marriage, adoption and inheritance laws. The recent Windsor  ruling, interestingly, at several places, integrates liberty and equality (see pp. 20, 21, 25). However, given the constraints of federalism, it is unclear if it would benefit LGBT people living in states that have not recognized same-sex marriages.

The inequality of power that manifests in LGBT persons’ inability to determine or change the organising principles of society (for example, marriage and family) by exercising one’s autonomy, strikes at both issues of access and opportunity. In the context of structural and systemic discrimination, taking a detached view of liberty and equality at best yields incremental gains. A multi-focal and integrated view, that questions the organizing principles and supporting legal and social structures, seems a more holistic judicial strategy.

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Trump Rights or Right Trumps? Understanding Dworkin’s ‘rights as trumps’ thesis

(This post owes much to an illuminating conversation I had with my friend, Shreya Atrey. She expressed doubts with conceptualizing rights as ‘trumps’ and suggested a more structural-contextual view of rights as incorporating varied aspects of balancing and proportionality. The inadequacies of my response prompted me to re-look Dworkinian rights thesis.)

This post tries to explain briefly, Ronald Dworkin’s conceptualization of rights as ‘trumps’. What is not attempted here are the questions relating to virtuosity of rights regime. Rights do appear to set up a confrontational model (and perhaps ‘trumps’ metaphor accentuates it too) and thus the role of inequality of power cannot be ruled out and rights skepticCivil Rights movement_march-on-washington may have a legitimate case there. Next, what I exclude from the discussion is the debate about indivisibility of socio-economic and civil-political rights. That is a question about what can be described as a right. My inquiry, on the other hand, is what a right can be described as. The other question that I am not answering is whether ‘trumps’ is the only or, if not that, whether it is the best metaphor to describe rights. It is however, important that (a) we do not misunderstand the metaphor and (b) that we do not understand it only from the metaphor.

Both absolutist and isolationist conceptions of right have long been rejected. The former conception states that the state lacks moral authority to constrain the free exercise of the content of a right guaranteed to individuals. Perhaps, only a disillusioned libertarian could stake a claim of that nature. The second conception erringly, in my opinion, takes a disengaged view of right that one ought to see a right in its own right and not in the light of other considerations, even if it is another important right. Rights often compete with one another as well as with other policy considerations. That being so, how can we say rights are trumps?  While I answer that, let me state another question, which I am not immediately concerned with, and that is this: how does this discussion germane in real life? Suffice it to say, on a political and ethical level on the legitimacy of a state and a political community, it may be a very relevant question, but that explication may be postponed.

The readers ought to keep in mind two foundational considerations in Dworkin’s work.  First, the underlying abstract principle of equal concern and respect i.e., political community must treat the respective fate of its members as ‘equally important and respect their individual responsibilities of their own life’ (Justice for Hedgehogs, 330). Second, Dworkin’s belief of truth in interpretation implies taking disagreements and differences in way people define the contours of interpretive concepts such as rights, good life, democracy, etc. seriously. The second admits of pluralism while the first suggests a modicum of principled universalism. The third is a liberal commitment to human dignity traceable to the jurisgenerative facet of human beings enabling them to define and pursue their interests. In that triad, we ought to understand the ‘trump’ conception of right.

Dworkin observes: “Individual rights are political trumps held by the individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.” (Taking Rights Seriously, xi)

It is noteworthy that Dworkin does not say that rights are unregulated interests, he only points to certain justifications that in, his opinion, must be trumped by a countervailing strong right, should we take it seriously. One may say that over-insistence on individual rights compounded with a disregard for collective goals may prove costly not only for the community but also for the right holder (See, Robin West, Rights, Harms, and Duties: A Response to Justice for Hedgehogs, 90 B.U. L. Rev. 819 (2010). West believes that the emphasis must turn to imposing duties on the state to promote well-being of its citizens instead. This suggestion is based on a dangerous assumption that state may not have and thus may not impose its own conception of good life, however. The second wave of protests at Tahrir Square (regarding the post-conflict new Egyptian constitution) is enough to dispel doubts about its general unsustainability. There may however be some genuine collective goals worth considering such as sustainable development, security and liberal education. That however, is not incompatible with idea of rights as trumps, since those policy measures are geared towards creating the democratic conditions of a political community (See, Freedom’s Law, 23-6) which would allow one to not only make informed personal choices but participate as a member of that community as well. It is incorrect to say that treating rights as trumps obviates collective decision making. What it does militate against is the contingency of rights on a crude majoritarian premise because then calling an interest, a ‘right’, is a misnomer to say the least. It is cardinal to note this distinction.

Now that the rights can be regulated, how must it be done? This brings us to perhaps the central underlying abstract principle that Dworkin espouses: equal concern and respect. The state shall make those decisions treating each individual with equal concern and respect. Bentham’s utilitarianism fails to deliver on that front as it based on external preferences treats some more equal than others. This however, is different from the equality enhancing collective measures which to empower the historically marginalized sections of the society. Dworkin answers why racial segregation is impermissible in his account and affirmative action is, as the former is motivated by a prejudice and the latter is a step towards creating democratic conditions of a political community (TRS, 223-239). Another example, Dworkin criticises Lochner court’s verdict on right to freedom of contract, saying: “I cannot think of any argument that a political decision to limit such a right, in the way in which minimum wage laws limited it, is antecedently likely to give effect to external preferences, and in that way offend the right of those whose liberty is curtailed to equal concern and respect.” (TRS, 278). Thus principled collective decision-making, respecting that underlying value, is not at odds with Dworkinian rights thesis.

I shall now consider the isolationist concerns, that this metaphor may mislead us to. It is the idea that rights compete and often need to be balanced. What competition is permissible and what weight a right gets in the balancing act of the government? The second of this can be answered in terms of the preceding paragraph. As for competing rights, Dworkin rejecting the majoritarian reasoning argues for a more rigorous approach: “we must recognize as competing rights only the rights of other members of the society as individuals” (TRS, 194). Then, of course, a bigger trump may defeat the smaller trump.

What about other pressing political considerations? Can a government impose censor certain speech during wars? Dworkin concedes that under such situations rights may be restricted only when there is a danger of significant magnitude and the same is not speculative but ‘clear and present’.  Hence films cannot be banned and objectors cannot be silenced merely on speculation that it smells of conspiracy by opposition parties to discredit the government.

So what is ‘trump’ here? The trumps are about the kind of reasons a government may legitimately act upon to curtail rights. Trumps are not routinely used in a card game. When can these trumps be used? Dworkin answers this by saying that when the society is divided and the appeals to common good are pointless. Trumping contrasts with balancing and prevails when the latter would somehow make light of the moral significance of rights for external considerations. As Waldron notes, trumping instead of suggesting insulation from collective good generally reflects a determination to exclude reasons out from the politics and not to reason out politics in favour of some crude transcendentalism (See, Jeremy Waldron, Pildes on Dworkin’s Theory of Rights, 29 Jour. of Legal Stud. 301 (2000).